Many obese workers now have disability protection

Fat shaming and perceptions of laziness are rife in the British workplace. However, employers should tread carefully as the law now gives additional protection to many larger people

In today’s society, many of us take pride in our tolerance. However, just beneath the surface of decency is a sea of prejudice and misconception. You’d be forgiven for thinking that with ever-increasing waistlines everywhere, overweight people would be cut some slack. This isn’t the case; fat shaming is alive and well, even in the workplace. To be the butt of a fat joke is bad enough but a recent survey of 1,000 firms showed this is just the tip of the iceberg, with around half of employers being less inclined to recruit obese people.

The study found many bosses believe overweight workers to be “lazy” and “unfit to fulfil their roles”. Beverley Sunderland, managing director of Crosslands Employment Solicitors, which commissioned the research, said: “Prejudiced attitudes towards hiring obese workers are rife among British employers.”

The findings come in the wake of a European Court of Justice (ECJ) case brought on behalf of childminder Karsten Kaltoft who claimed he was sacked by his local authority in Denmark in 2010 for being too fat. He had a BMI of 54 and in his 15 years in the role, he had never weighed more than 25 stone. It doesn’t stand to reason then that it should become a problem so late in his career but, with the current zeitgeist of anti-obesity, it hardly seems surprising.

The ECJ ruled that someone who was clinically obese (those with BMI of over 30) could qualify as disabled if the problems caused by their weight had a severe enough affect on their life. It did not say that obesity per se was a disability but that it may make it more likely that someone has a disability – because of mobility restrictions, secondary conditions like diabetes, cardiovascular disease, arthritis, and so on – which means they would then be covered by the Equality Act 2010.

“If the effects of obesity give a person a disability like they did with Kaltoft, then they get protection from disability legislation,” says Deborah Scales, employment solicitor at Cartwright King. “Therefore, they are protected from unwanted attention regarding their weight which means how Kaltoft was treated was unlawful harassment on the grounds of his disability.”

Scales believes that the ruling went far enough and that obesity on a whole should not be considered a disability. “Think of Dawn French who used to throw herself about the stage – she was fat and healthy,” she says. “Likewise, you may have colleagues at work who are technically obese but who walk briskly and are fantastic workers; to make a ruling that if the person’s BMI is on a certain scale they are disabled would be a retrograde step.”

“You’ve got to protect someone’s dignity and privacy and, by automatically labelling obese people as disabled, there would be uproar. I’m sure they wouldn’t want that,” she adds.

The first time the Kaltoft ruling was applied in the UK was in the case of Neil Bickerstaff, a morbidly obese man who was subjected to a torrent of abuse and harassment due to his weight. A co-worker said he was “so fat” he could hardly walk and “wouldn’t feel a knife being stuck in him,” on top of many other derogatory comments. This treatment went on for years.

Bickerstaff worked for Randox Laboratories in Belfast and brought his case to an industrial tribunal that accepted that his gout, which was linked to his diet and weight problems and led to knee, joint and back pains, was a disability.

That obesity may sometimes be self-inflicted makes absolutely no difference and overweight people have absolutely no legal obligation to lose weight. It is employers who are obliged to make reasonable adjustments to rules, policies or work stations so that a disabled person can work on the same level-playing field as his non-disabled colleague. “In a small company, you wouldn’t expect them to put a lift in because they couldn’t afford it and so it wouldn’t be reasonable,” says Scope. “If it was a larger company, you’d expect them to have a lift anyway.”

The Bickerstaff decision is the first time the Kaltoft ruling has been applied in the UK – and should act as a wake-up call for employers about the impact of disability protection being extended to the obese. The problem for employers is that they are largely liable for what their employees do during the course of their employment.

Under disability discrimination, the penalties for employers are more serious. The employee can get a tortious remedy, loss of earnings and injury to feelings awards. Injury to feelings awards are to compensate someone for the hurt, distress, upset and embarrassment that has been caused by the unlawful act and go from £6,600 up to £33,300. A loss of earnings can be unlimited, depending on salary.

To protect themselves against such claims and awards, employers will need to, as a minimum, demonstrate they have taken all reasonable stops to avoid such conduct. Employers are also advised to review their rules, procedures and training in order to ensure their employees are aware of the protection that obese people have.